The Unethical Justice Clarence Thomas And His Influence Peddling Wife, Ginny Thomas

Above image: h/t Slate.

Jane Mayer in another lengthy, richly detailed investigative report at the New Yorker poses the question, Is Ginni Thomas a Threat to the Supreme Court? (excerpts – I recommend you read the full report):

President Joe Biden recently established a bipartisan commission to consider reforms to the Court, and members of Congress have introduced legislation that would require Justices to adhere to the same types of ethics standards as other judges. Roberts’s report, however, defiantly warned everyone to back off. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence,” he wrote. His statement followed a series of defensive speeches from members of the Court’s conservative wing, which now holds a super-majority of 6–3. Last fall, Justice Clarence Thomas, in an address at Notre Dame, accused the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, he said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”

The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.” Thomas, a lawyer who runs a small political-lobbying firm, Liberty Consulting, has become a prominent member of various hard-line groups. Her political activism has caused controversy for years. For the most part, it has been dismissed as the harmless action of an independent spouse. But now the Court appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.

Many Americans first became aware of Ginni Thomas’s activism on January 6, 2021. That morning, before the Stop the Steal rally in Washington, D.C., turned into an assault on the Capitol resulting in the deaths of at least five people, she cheered on the supporters of President Donald Trump who had gathered to overturn Biden’s election. In a Facebook post that went viral, she linked to a news item about the protest, writing, “love maga people!!!!” Shortly afterward, she posted about Ronald Reagan’s famous “A Time for Choosing” speech. Her next status update said, “god bless each of you standing up or praying.” Two days after the insurrection, she added a disclaimer to her feed, noting that she’d written the posts “before violence in US Capitol.” (The posts are no longer public.)

Later that January, the Washington Post revealed that she had also been agitating about Trump’s loss on a private Listserv, Thomas Clerk World, which includes former law clerks of Justice Thomas’s. The online discussion had been contentious. Coup Plotter John Eastman, a former Thomas clerk and a key instigator of the lie that Trump actually won in 2020, was on the same side as Ginni Thomas, and he drew rebukes. According to the Post, Thomas eventually apologized to the group for causing internal rancor. Artemus Ward, a political scientist at Northern Illinois University and a co-author of “Sorcerers’ Apprentices,” a history of Supreme Court clerks, believes that the incident confirmed her outsized role. “Virginia Thomas has direct access to Thomas’s clerks,” Ward said. Clarence Thomas is now the Court’s senior member, having served for thirty years, and Ward estimates that there are “something like a hundred and twenty people on that Listserv.” In Ward’s view, they comprise “an élite right-wing commando movement.” Justice Thomas, he says, doesn’t post on the Listserv, but his wife “is advocating for things directly.” Ward added, “It’s unprecedented. I have never seen a Justice’s wife as involved.”

Update: Coup Plotter John Eastman refused to provide information to the January 6  Committee when it subpoenaed him directly for testimony and documents. He had claimed his Fifth Amendment protection against self-incrimination as a response to nearly 150 questions and to his document subpoena, a lawyer for the House said on Monday. The House committee then went to his former employer, Chapman University, to seek his email records. Trump lawyer ordered to respond to January 6 committee subpoena for his Chapman University emails: Federal Judge David Carter in Santa Ana, California, on Monday ordered John Eastman to respond to a House select committee subpoena of Chapman University for his emails — setting congressional investigators up to receive access to information they’ve wanted for months but had not been able to get.nCarter indicated at a court hearing on Monday that he wanted the [attorney-client privilege] email reviews to happen fast, having the parties work over the weekend and telling Eastman to hand over emails to the House as they are sorted through. Carter also said Eastman would lose his broader challenge to the House’s authority, and on his claims that his constitutional rights of free speech and protection from illegal search were being violated.

Clarence and Ginni Thomas declined to be interviewed for this article. In recent years, Justice Thomas, long one of the Court’s most reticent members, has been speaking up more in oral arguments. His wife, meanwhile, has become less publicly visible, but she has remained busy, aligning herself with many activists who have brought issues in front of the Court. She has been one of the directors of C.N.P. Action, a dark-money wing of the conservative pressure group the Council for National Policy. C.N.P. Action, behind closed doors, connects wealthy donors with some of the most radical right-wing figures in America. Ginni Thomas has also been on the advisory board of Turning Point USA, a pro-Trump student group, whose founder, Charlie Kirk, boasted of sending busloads of protesters to Washington on January 6th.

Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, told me, “I think Ginni Thomas is behaving horribly, and she’s hurt the Supreme Court and the administration of justice. It’s reprehensible. If you could take a secret poll of the other eight Justices, I have no doubt that they are appalled by Virginia Thomas’s behavior. But what can they do?” Gillers thinks that the Supreme Court should be bound by a code of conduct, just as all lower-court judges in the federal system are. That code requires a judge to recuse himself from hearing any case in which personal entanglements could lead a fair-minded member of the public to question his impartiality. Gillers stressed that “it’s an appearance test,” adding, “It doesn’t require an actual conflict. The reason we use an appearance test is because we say the appearance of justice is as important as the fact of justice itself.”

The Constitution offers only one remedy for misconduct on the Supreme Court: impeachment. This was attempted once, in 1804, but it resulted in an acquittal, underscoring the independence of the judicial branch.

[In] recent years, Democrats have been trying to impose stronger ethics standards on the Justices—a response, in part, to what Justice Sonia Sotomayor has described as the “stench” of partisanship on the Court. In 2016, Republicans in Congress, in an unprecedented act, refused to let President Barack Obama fill a vacancy on the Court. Trump subsequently pushed through the appointment of three hard-line conservative Justices. Last summer, Democrats in Congress introduced a bill that would require the Judicial Conference of the United States to create a binding code of conduct for members of the Supreme Court. They also proposed legislation that would require more disclosures about the financial backers behind amicus briefs—arguments submitted by “friends of the court” who are supporting one side in a case.

So far, these proposals haven’t gone anywhere, but Gillers notes that there are extant laws circumscribing the ethical behavior of all federal judges, including the Justices. Arguably, Clarence Thomas has edged unusually close to testing them. All judges, even those on the Court, are required to recuse themselves from any case in which their spouse is “a party to the proceeding” or is “an officer, director, or trustee” of an organization that is a party to a case. Ginni Thomas has not been a named party in any case on the Court’s docket;nor is she litigating in any such case. But she has held leadership positions at conservative pressure groups that have either been involved in cases before the Court or have had members engaged in such cases. In 2019, she announced a political project called Crowdsourcers, and said that one of her four partners would be the founder of Project Veritas, James O’Keefe. Project Veritas tries to embarrass progressives by making secret videos of them, and last year petitioned the Court to enjoin Massachusetts from enforcing a state law that bans the surreptitious taping of public officials. Another partner in Crowdsourcers, Ginni Thomas said in her announcement, was  Coup Plotter Cleta Mitchell, the chairman of the Public Interest Legal Foundation, a conservative election-law nonprofit. [See, Attorney On Call With Trump And Georgia Officials Resigns From Law Firm: Cleta Mitchell resigned her partnership from the Washington, D.C., office of Foley & Lardner following criticism of her involvement in the Jan. 2 phone call between Trump and Georgia officials.] It, too, has had business before the Court, filing amicus briefs in cases centering on the democratic process. Thomas also currently serves on the advisory board of the National Association of Scholars, a group promoting conservative values in academia, which has filed an amicus brief before the Court in a potentially groundbreaking affirmative-action lawsuit against Harvard. And, though nobody knew it at the time, Ginni Thomas was an undisclosed paid consultant at the conservative pressure group the Center for Security Policy, when its founder, Frank Gaffney, submitted an amicus brief to the Court supporting Trump’s Muslim travel ban.

Bruce Green, a professor at Fordham specializing in legal ethics, notes … that “the appearance” created by Ginni Thomas’s political pursuits “is awful—they look like a mom-and-pop political-hack group, where she does the political stuff and he does the judging.” It’s hard to imagine, he told me, that the couple doesn’t discuss Court cases: “She’s got the ear of a Justice, and surely they talk about their work.” But, from the technical standpoint of judicial ethics, “she’s slightly removed from all these cases—she’s not actually the legal director.” Green feels that the conflict of interest is “close, but not close enough” to require that Thomas recuse himself.

David Luban, a professor of law and philosophy at Georgetown, who specializes in legal ethics, is more concerned. He told me, “If Ginni Thomas is intimately involved—financially or ideologically tied to the litigant—that strikes me as slicing the baloney a little thin.”

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Ginni Thomas had wanted to run for Congress, but once her husband was on the Supreme Court she reportedly felt professionally stuck. She moved through various jobs, including one at the Heritage Foundation, the conservative think tank. In 2010, she launched her lobbying firm, Liberty Consulting. Her Web site quotes a client saying that she is able to “give access to any door in Washington.”

Four years ago, Ginni Thomas inaugurated the Impact Awards—an annual ceremony to honor “courageous cultural warriors” battling the “radical ideologues on the left” who use “manipulation, mobs and deceit for their ends.” She presented the awards at luncheons paid for by United in Purpose, a nonprofit that mobilizes conservative evangelical voters. Many of the recipients have served on boards or committees with Ginni Thomas, and quite a few have had business in front of the Supreme Court, either filing amicus briefs or submitting petitions asking that the Justices hear cases. At the 2019 event, Ginni Thomas praised one of that year’s recipients, Abby Johnson, a former Planned Parenthood employee who became an anti-abortion activist, for her “riveting indictment of Planned Parenthood’s propagation of lies.” That year, Thomas also gave a prize to Mark Meadows, then a hard-line Republican in Congress, describing him as the leader “in the House right now that we were waiting for.” Meadows, in accepting the award, said, “Ginni was talking about how we ‘team up,’ and we actually have teamed up. And I’m going to give you something you won’t hear anywhere else—we worked through the first five days of the impeachment hearings.”

Thomas’s decision to bestow prizes on Johnson and Meadows underscores the complicated overlaps between her work and her husband’s. In 2020, Johnson, a year after receiving an Impact Award, filed with the Court an amicus brief supporting restrictions on abortion in Louisiana. Last year, Johnson participated in the January 6th protests, and the insurrection has since become the object of much litigation, some of which will likely end up before the Court. Last month, she went on Fox News and said that “a couple of the liberal Justices”—she singled out Justice Sotomayor by name—had been “idiotic” during oral arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case now under consideration by the Supreme Court. (Johnson didn’t respond to requests for comment.)

Soon after Ginni Thomas gave Mark Meadows an Impact Award, he became Trump’s chief of staff. This past December, he refused to comply with a subpoena from the House select committee that is investigating the Capitol attack. Cleta Mitchell, who advised Trump on how to contest Biden’s electoral victory, received an Impact Award in 2018. She has moved to block a committee subpoena of her phone records. The House of Representatives recently voted to send the Justice Department a referral recommending that it charge Meadows with criminal contempt of Congress. The same thing may well happen to Mitchell. It seems increasingly likely that some of Ginni Thomas’s Impact Award recipients will end up as parties before the Supreme Court.

It is plainly clear that Ginny Thomas has close associations with the January 6 Coup Plotters. The January 6 Committee should call her to testify since it is highly unlikely that she will ever be a cooperative witness.

[On] January 19th, the Supreme Court rejected the former President’s request that it intervene to stop the congressional committee from accessing his records. Justice Thomas was the lone Justice to dissent. (Meadows had filed an amicus brief in support of Trump.) Ginni Thomas, meanwhile, has denounced the very legitimacy of the congressional committee. On December 15th, she and sixty-two other prominent conservatives signed an open letter to Kevin McCarthy, the House Minority Leader, demanding that the House Republican Conference excommunicate Representatives Liz Cheney and Adam Kinzinger for their “egregious” willingness to serve on the committee. The statement was issued by an advocacy group called the Conservative Action Project, of which Ginni Thomas has described herself as an “active” member. The group’s statement excoriated the congressional investigation as a “partisan political persecution” of “private citizens who have done nothing wrong,” and accused the committee of serving “improperly issued subpoenas.”

A current member of the Conservative Action Project told me that Ginni Thomas is part of the group not because of her qualifications but “because she’s married to Clarence.” The member asked to have his name withheld because, he said, Ginni is “volatile” and becomes “edgy” when challenged. He added, “The best word to describe her is ‘tribal.’ You’re either part of her group or you’re the enemy.”

Ginni Thomas has her own links to the January 6th insurrection. Her Web site, which touts her consulting acumen, features a glowing testimonial from Kimberly Fletcher, the president of a group called Moms for America: “Ginni’s ability to make connections and communicate with folks on the ground as well as on Capitol Hill is most impressive.” Fletcher spoke at two protests in Washington on January 5, 2021, promoting the falsehood that the 2020 election was fraudulent. At the first, which she planned, Fletcher praised the previous speaker, Representative Mary Miller, a freshman Republican from Illinois, saying, “Amen!” Other people who heard Miller’s speech called for her resignation: she’d declared, “Hitler was right on one thing—he said, ‘Whoever has the youth has the future.’ ” At the second protest, not far from the Trump International Hotel, Fletcher declared that, when her children and grandchildren one day asked her,“Where were you when the Republic was on the verge of collapse?,” she would answer, “I was right here, fighting to my last breath to save it!”

Note: EXCLUSIVE: There Was ANOTHER Rally Planned On Jan. 6 … At The Supreme Court: The same people who organized Trump’s fateful rally on the Ellipse had something else in store on Jan. 6: a separate, previously unreported rally planned in front of the Supreme Court. In the end the organizers delayed, then aborted the Supreme Court rally as the assault on the Capitol unfolded and roads around the building were blocked.

Vivian Brown, who returned a call to Moms for America, said that she would not discuss Fletcher’s testimonial for Ginni Thomas or clarify whether Fletcher had been Thomas’s business client. But the record suggests that the two have been political associates for more than a decade. A program from Liberty xpo & Symposium, a 2010 convention that has been described as the “largest conservative training event in history,” indicates that Fletcher and Thomas co-hosted a Remember the Ladies Banquet. A list of other speakers at the symposium includes Stewart Rhodes, the founder of the Oath Keepers, an extremist militia group. Rhodes was arrested earlier this month and charged, along with ten associates, with seditious conspiracy for allegedly plotting to halt the congressional certification of Biden’s electoral win by storming the Capitol. (Rhodes has pleaded not guilty.)

Another organizer of the January 6th uprising who has been subpoenaed by the congressional committee, Ali Alexander, also has long-standing ties to Ginni Thomas. Like Fletcher, Alexander spoke at a rally in Washington the night before the riot, leading a chant of “Victory or death!” A decade ago, Alexander was a participant in Groundswell, a secretive, invitation-only network that, among other things, coördinated with hard-right congressional aides, journalists, and pressure groups to launch attacks against Obama and against less conservative Republicans. As recently as 2019, Ginni Thomas described herself as the chairman of Groundswell, which, according to documents first published by Mother Jones, sees itself as waging “a 30 front war seeking to fundamentally transform the nation.” As Karoli Kuns, of the media watchdog Crooks and Liars, has noted, several Groundswell members—including Steve Bannon and Sebastian Gorka, the fringe foreign-policy analyst—went on to form the far-right flank of the Trump Administration. (Both Bannon and Gorka were eventually pushed out.) According to Ginni Thomas’s biography in the Council for National Policy’s membership book, she remains active in Groundswell. A former participant told me that Thomas chairs weekly meetings.

Norman Eisen, a senior fellow at the Brookings Institution who, between 2009 and 2011, served as the special counsel and special assistant to the President for ethics and government reform, told me that “it is hard to understand how Justice Thomas can be impartial when hearing cases related to the upheaval on January 6th, in light of his wife’s documented affiliation with January 6th instigators and Stop the Steal organizers.” He argues that “Justice Thomas should recuse himself, given his wife’s interests in the outcome of these cases.”

Gillers, of N.Y.U., and other legal scholars say that there is little chance of such a recusal. Justice Thomas has recused himself at least once before, from a 1996 case involving a military academy that his son was attending. But, as Eisen observed, though Ginni Thomas’s activism has attracted criticism for years, Clarence Thomas has never acknowledged it as a conflict of interest.

* * *

Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them. And many, if not all, of these groups have been involved in cases that have come before her husband. Her Web site lists the National Association of Scholars—the group that has filed an amicus brief in the lawsuit against Harvard—among her “endorsed charities.” The group’s brief claims that the affirmative-action policies used by the Harvard admissions department are discriminatory. Though the plaintiffs have already lost in two lower courts, they are counting on the Supreme Court’s new conservative super-majority to side with them, even though doing so would reverse decades of precedent. Peter Wood, the president of the N.A.S., is another Impact Award recipient. So, too, is Robert George, a legal scholar at Princeton who, according to the N.A.S.’s Web site, serves with Ginni Thomas on its advisory board. (He says that he has “not been active” on the board.) He received a “Lifetime” Impact Award from Ginni Thomas in 2019, and recently filed an amicus brief before the Supreme Court, in support of Mississippi’s ban on nearly all abortions after fifteen weeks of pregnancy.

In April, 2020, when Ginni Thomas was serving as one of eight members on the C.N.P. Action board, it was chaired by Kelly Shackelford, the president and C.E.O. of First Liberty, a faith-based litigation group that is currently involved in several major cases before the Court. Last week, to the surprise of many observers, the Court agreed to hear a case in which First Liberty is defending a football coach at a public high school in Washington State who was fired for kneeling and praying on the fifty-yard line immediately after games. Richard Katskee, the legal director of Americans United for Separation of Church and State, who is defending the school board, told me that the case was “huge,” and could overturn fifty years of settled law. Shackelford’s group is also the co-initiator of another case before the Court: a challenge to a Maine law prohibiting the state from using public funds to pay parochial-school tuition for students living in areas far from public schools. In addition to these cases, First Liberty has filed lawsuits that challenge covid-19 restrictions on religious grounds—an issue that has come before the Court—and Ginni Thomas and Shackelford have served together on the steering committee of the Save Our Country Coalition, which has called covid-19 health mandates “unconstitutional power grabs.” In a phone interview, Shackelford told me that he couldn’t see why Ginni Thomas’s work with him posed a conflict of interest for Justice Thomas. “It’s no big deal, if you look at the law on this,” he said. It would be different, he argued, if there were a financial interest involved, or if she were arguing First Liberty’s cases before the Court herself—but, he said, “almost everyone in America is connected through six degrees of separation.”

Another of Ginni Thomas’s fellow-directors on the C.N.P. Action board in 2020 was J. Kenneth Blackwell, a former Ohio secretary of state who is tied to one of the most consequential gun cases currently under consideration by the Supreme Court. In 2020, he was on the National Rifle Association’s board of directors, and at the time the gun group’s official affiliate in New York was challenging the state’s restrictions on carrying firearms in public spaces. Earlier this term, the Court heard a related challenge, and a decision is expected later this year. (Blackwell didn’t respond to an interview request.) Meanwhile, the Web site friendsofnra.org currently boasts that a winner of its youth competition had the opportunity to meet with “the wife of current Supreme Court Justice Clarence Thomas.”

For lawyers involved in cases before the Supreme Court, it can be deeply disturbing to know that Ginni Thomas is an additional opponent. In 2019, David Dinielli, the visiting lecturer at Yale Law School, was a deputy legal director of the Southern Poverty Law Center, which had submitted an amicus brief in a gay-rights case before the Court. He told me he was acutely aware that Ginni Thomas and other members of the Council for National Policy loathed the Southern Poverty Law Center, which tracks right-wing hate groups. In 2017, C.N.P. Action directed its members to “commit to issuing one new post on Facebook and Twitter each week about the Southern Poverty Law Center to discredit them.” In Thomas’s leaked 2018 speech to the Council for National Policy, she denounced the S.P.L.C. for calling the Family Research Council—which is militantly opposed to L.G.B.T.Q. rights—a hate group.

For Dinielli, the idea that a Justice’s spouse belonged to a group that had urged its members to repeatedly attack his organization was “counter to everything you’d expect if you want to get a fair shake” before the Court. He explained, “These activities aren’t just political. They’re aimed at raising up or denigrating actors specifically in front of the Supreme Court. She’s one step away from holding up a sign in front of her husband saying ‘This person is a pedophile.’ ”

Dinielli went on, “The Justices sit literally above where the lawyers are. For these people to do the job they were tasked with, they have to maintain that level. But this degrades it, mocks it, and threatens it.” He warned, “Since the Court doesn’t have an army, it relies on how it behaves to command respect. Once the veneer cracks, it’s very hard to get it back.”

The Nation’s justice correspondent, Elie Mystal, discussed Mayer’s reporting on MSNBC’s The ReidOut.

Transcript (excerpt):

MYSTAL: But Ginni Thomas has been a problem for 30 years.

And the problem is not — this is important to under — to say, because I don`t want people to get it twisted. I would never come on your show and criticize a spouse of an important person for continuing to have a job. The spouses should still have a job, no matter how important their spouse is.

The problem is not that Ginni Thomas has a job. The problem is that Ginni Thomas is a crazy right-wing reactionary, who pins literal meddles on people before they show up in Clarence Thomas` courtroom.

The moral turpitude here, therefore, is not really Ginni Thomas. It is Clarence Thomas for lacking the moral character to recuse himself from situations where his wife has not only already taken a position, but already literally put her imprimatur of respectability on litigants in his courtroom.

It is Clarence Thomas who is letting the entire country down, while — more so than then his wife`s desire to be a right-wing crazy person.

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MYSTAL: But the appearance here is that the reason why he dissented is because his wife, Ginni Thomas, is all up in January 6. She posted on Facebook encouraging those people on January 6 on their special Clarence Thomas clerk web — LISTSERV that they have. She`s been in the LISTSERV, like, pushing January 6 conspiracy theories.

She and John Eastman, who, also is under investigation, are on the same side on that LISTSERV against, like, other kind of normal Thomas clerks, who are just like, whoa, the whole insurrection thing, I don`t know, man.

Like, that is what shes doing. So, when Thomas is the lone dissenter on these issues where his wife literally may be implicated in a plot to overthrow the government, and the man doesnt recuse, like, make that make sense. You can`t make that make sense.